10 August 2011

Innocent Possession Part II

After reading Jamison Koehler's post on innocent possession of a firearm, I see that he is talking about a D.C. exception to any possession of a firearm charge so that if (1) there is a lack of criminal purpose, and (2) the gun is possessed as an affirmative effort to further "social policy underlying enforcement" it is not illegal

My answer now shifts to, I don't think this defense exists, but you would have to look at what ever possession statute the defendant was charged under. If there is no intent element in the specific statute then possession is strict liability. SeeEsteban v. Commonwealth (strict liability when a teacher accidentally brings a pistol to school in her purse). For instance 18.2-308 states

If any person carries about his person, hidden from common observation, [various weapons], he shall be guilty of a Class 1 misdemeanor.

Other firearm statutes require "to knowingly and intentionally" possess (§ 18.2-308.1:1; 18.2-308.2) or to possess "with knowledge and intent" (§ 18.2-308.4(A) & (B)). So, possession would not be illegal under these statutes if the firearm was possessed by accident or was planted on someone.

However, I can find no intent in a Virginia statute which matches the D.C. innocent intent doctrine. The nearest thing I can find the "necessity defense." This defense requires (1) a reasonable belief that the action was necessary to avoid an imminent threatened harm and (2) a lack of other adequate means to avoid the threatened harm and (3) the evidence must prove a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm. Waller v. Commonwealth, SEP08, VaApp No. 1024-07-3. A generalized fear that someone will harm a person at some time is not enough to possess a firearm. Byers v. Commonwealth, NOV01, VaApp No. 2269-00-3. However, if someone is under fire, runs to his father's shed, and gets his father's shotgun to defend himself and his girlfriend a necessity instruction can be required. Humphrey v. Commonwealth, OCT01, VaApp No. 1982-00-2.

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.